A national emergency and a war emergency were unmistakably in existence in 1942. Every day the lives of thousands of wounded were endangered unless the threatening wound infection could be checked by the application of proper remedies and the elimination of inadequate remedies. The danger was “actual”. Immediate help had to be provided. The “public interest” demanded the experimental clarification of this question. The evidence has shown that the question could not be clarified by experiments on animals or by the observation of incidental wounds.
The last word on this question, however, is not said merely by reference to the public interest. Opposed to the public interest are the individual interests. The saying “necessity knows no law” cannot claim unlimited validity. But just as little can the infringement on individual interests in order to save others be considered as “contrary to good morals”. The evidence has shown that the members of the resistance movement of Camp Ravensbrueck who were condemned to death could only escape imminent execution if they submitted to the experiments which form the subject of this indictment. There is no need to examine here and now whether the experimental subjects did give their consent or whether they presumably would have consented, if, from their personal point of view and in the full knowledge of the situation, they could have made a decision within the meaning of an objective judicial opinion based on probability. What really matters is the question of whether after a just and fair evaluation of the interests of the general public and the real interests of the experimental subjects, the defendant could conclude that, all circumstances considered, the execution of the experiments was justifiable. Without doubt this question can be answered in the affirmative. Quite apart from the interest of the state in the execution of the experiments, participation in the experiments was in the real and well-considered interest of the experimental subjects themselves, since this participation offered the only possibility of saving their lives through an act of mercy.
The Defendant’s Erroneous Assumption of an Emergency
(Putative Emergency)
I have already mentioned the circumstances which justify the assumption of a national emergency and a war emergency caused by the special conditions prevailing in 1942. If these conditions actually prevailed, the illegality of the act and not only the guilt of the perpetrator would be excluded for reasons previously enumerated. If the defendant had erroneously assumed circumstances which if they really had existed would have justified a national emergency and a war emergency, then, according to the general principles already mentioned, the intent of the defendant and thus his guilt would also be eliminated in this respect. The evidence, especially the defendant’s own statements on the witness stand, leaves no doubt that, when the experiments began in 1942, he had assumed the existence of such circumstances which were indeed the starting point and motive for ordering and carrying out these experiments.
EXTRACT FROM THE FINAL PLEA FOR DEFENDANT
SIEVERS[[4]]
May I remind you of the exciting part of my case in chief which dealt with Sievers’ participation in the resistance against the National Socialist government and administration. By putting forward his activity in a resistance movement, the defendant Sievers does not endeavor to obtain a mitigation of an eventual condemnation. In my opinion, this activity must under all circumstances result in his acquittal, even though, contrary to expectation the High Tribunal should tend towards the opinion that Sievers had participated in the accused crimes.
In the first place it is my intention to discuss a series of legal questions that have at all times been acknowledged in the criminal law of all civilized nations. It is not by any means the task of the High Tribunal to apply any special article of law, but, from general legal and legal-philosophical principles, to lay down a rule finding and creating a new law to meet a new situation. It need hardly be said that first and foremost I am supporting my own client. But in your verdict, you, your Honors, are not judging only this defendant. Beyond this particular case your verdict has a far more extensive, general, nay, world-wide importance. For it is the first time that a tribunal of such importance is to decide upon the actions of a member of a resistance movement. Consequently, your judgment is a fundamental one and a signpost for our time for many, many other defendants and accused men in this connection who have stood before this Tribunal or will be brought before other courts. Your decision for all time extends to cover thousands and thousands of men who, at some time, may be put in the position of opposing some criminal system of government by similar means as Sievers did. On this our globe there are still autocracies and totalitarian dictatorships and it requires only little foresight to realize that other dictatorships may involve other international entanglements and wars of the most horrible nature. Furthermore, in the future, mankind will again and again be in sore need of courageous men who for the sake of their nation and for the welfare of mankind oppose themselves to such dangerous doings. It is for such champions and for such groups of champions that your verdict will be a criterion and a signpost. You are deciding in advance the future possibilities and the sphere of action of future resistance movements against criminal governments and their chiefs. You are offered the opportunity of checking such movements by your verdict. But you are also able to give them the safety necessary for their dangerous enterprise and the success of their proceedings. How and where would such helpers be found in future if, apart from the immediate peril, they have to reckon with the additional danger of being called to account by the very people for whom they risked their lives? And therefore, your Honors, with your verdict in the Sievers case you take upon you a responsibility before the whole world and for all time to come, a responsibility as is seldom placed upon a tribunal. But on the other hand you can also say with pride that with this judgment you render an immeasurable service to the world in its struggle for peace and justice.